Techdirt. Stories about "google"Easily digestible tech news...https://www.techdirt.com/
en-usTechdirt. Stories about "google"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Mon, 30 Mar 2015 07:58:42 PDTJudge Suggests Attorney General Jim Hood Is Unconstitutionally Threatening Google 'In Bad Faith'Mike Masnickhttps://www.techdirt.com/articles/20150329/07310030472/judge-suggests-attorney-general-jim-hood-is-unconstitutionally-threatening-google-bad-faith.shtml
https://www.techdirt.com/articles/20150329/07310030472/judge-suggests-attorney-general-jim-hood-is-unconstitutionally-threatening-google-bad-faith.shtmlgranted a temporary injunction blocking a subpoena issued by Mississippi Attorney General Jim Hood, demanding all sorts of information from Google. At the time, the judge only said that Google's argument was "stronger" than Hood's, but said a full ruling would come out in time. That full ruling [pdf] is now out, and boy, does it make Jim Hood's anti-Google vendetta look questionable -- specifically saying that there is "significant evidence of bad faith" on the part of Hood to try to use his government position to unconstitutionally coerce Google into making changes to its service that it has no legal obligation to make.

If you don't recall, Hood has a long-standing obsession with Google, despite having an astounding level of ignorance about how the search engine actually operates. In his anti-Google rants, Hood makes statements that are blatantly false and repeatedly argues that Google is to blame merely because its search engine finds websites that Hood's office doesn't like and doesn't think should exist at all. And that doesn't even touch on the now known fact that the MPAA secretly funded Hood's investigation and wrote nearly every word of the threatening letters sent to Google.

While Hood and various MPAA supporters have insisted that he's clearly in the right, at least federal judge Henry Wingate doesn't see much to support that. Hood tried desperately to keep this issue out of federal court, using a variety of claims, including the so-called "Younger Abstention" which argues that federal courts should stay out of certain issues. However, as Wingate notes, that only applies in three specific cases, none of which apply to Hood's campaign against Google -- and, even if any of them did apply, there's a further exception for "bad faith" -- and Wingate is pretty convinced that Hood is acting in bad faith:

Moreover, even if the Younger elements were satisfied here, the court would not
be required to abstain here because an exception to the application of the doctrine
applies. Indeed, federal courts may disregard the Younger doctrine when a state court
proceeding was brought in bad faith or with the purpose of harassing the federal
plaintiff... Google has
presented significant evidence of bad faith, allegedly showing that Attorney General
Hood’s investigation and issuance of the subpoena represented an effort to coerce
Google to comply with his requests regarding content removal. As previously
discussed, the Attorney General made statements, on multiple occasions, which purport
to show his intent to take legal action against Google for Google’s perceived
violations. When Google declined to fulfill certain requests, the Attorney General
issued a 79-page subpoena shortly thereafter. The court is persuaded that this conduct
may evidence bad faith on the part of the Attorney General.

The court also notes that Hood clearly recognizes that many of his attacks on Google are blocked by Section 230 of the CDA (which, again, say you can't blame a service provider for actions of its users), because Hood himself signed a letter to Congress asking for Section 230 to be amended to exempt investigations by state attorneys general (we wrote about that dangerous effort at the time as well).

From there, Judge Wingate notes that it seems clear that Hood is likely violating Google's First Amendment rights too, even noting that the subpoena itself appears to be retaliation for protected free expression:

Furthermore, the court also is persuaded that Google has demonstrated a
substantial likelihood that it will prevail on its claim that Attorney General Hood has
violated Google’s First Amendment rights by: regulating Google’s speech based on its
content; by retaliating against Google for its protected speech (i.e., issuing the
subpoena); and by seeking to place unconstitutional limits on the public’s access to
information. First, the relevant, developing jurisprudence teaches that Google’s
publishing of lawful content and editorial judgment as to its search results is
constitutionally protected.... The Attorney
General’s interference with Google’s judgment, particularly in the form of threats of legal
action and an unduly burdensome subpoena, then, would likely produce a chilling effect
on Google’s protected speech, thereby violating Google’s First Amendment rights.

Additionally, it is well-settled that the Attorney General may not retaliate against
Google for exercising its right to freedom of speech by prosecuting, threatening
prosecution, and conducting bad-faith investigations against Google.... As
explained supra, Google has submitted competent evidence showing that the Attorney
General issued the subpoena in retaliation for Google’s likely protected speech, namely
its publication of content created by third-parties. Given the gravity of the rights
asserted herein, the court finds it appropriate to enjoin further action on behalf of the
Attorney General until a determination on the merits of Google’s claims is made.

Judge Wingate also sides with Google on the 4th Amendment, noting that the broad subpoena appears to be a "burdensome fishing expedition" that goes well beyond what the Attorney General is allowed to request.

Google also wins on the key issue that the MPAA was using Hood to press: how it handles searches for copyright-covered material. As Google points out, copyright is a federal law issue, not a state law issue, so the requests regarding copyright are preempted by federal law. Hood (and, apparently, his MPAA-paid lawyers who helped draw up the subpoena) tried, weakly, to get around this preemption by arguing that by finding unauthorized material, Google was "misleading customers." That doesn't fly:

The Attorney General admits that certain requests contained in the subpoena
“could arguably be used to show copyright infringement” (AG Response, p. 30), but
argues that the same information could also be used to expose Google’s various
practices of misleading customers. The court is not persuaded that the Attorney
General’s posited theoretical basis for making these requests is sufficient for the
purpose of rebutting Google’s preemption allegation.

Basically, the judge clearly recognizes Hood's effort for what it was: a broad fishing expedition that was partly "retaliation" against Google for daring to stand up for its right to run an online search engine. The case is far from over, but Hood (and his MPAA-assisted team) are going to have to move on to some other plan of attack. Maybe (just maybe), they can focus on (1) going after actual criminals, rather than made up ones and (2) telling the MPAA to learn how to innovate, rather than blame Google for its own failures.

Permalink | Comments | Email This Story
]]>ya think?https://www.techdirt.com/comment_rss.php?sid=20150329/07310030472Fri, 27 Mar 2015 04:07:46 PDTCopyright Bots Kill App Over 'Potentially Infringing' Images, Follow This Up By Blocking App For Use Of CC/Public Domain ImagesTim Cushinghttps://www.techdirt.com/articles/20150326/07041230436/copyright-bots-kill-app-over-potentially-infringing-images-follow-this-up-blocking-app-use-ccpublic-domain-images.shtml
https://www.techdirt.com/articles/20150326/07041230436/copyright-bots-kill-app-over-potentially-infringing-images-follow-this-up-blocking-app-use-ccpublic-domain-images.shtmlpolicing these days, fair use considerations are completely off the table. Nuances that can't be handled by a bot should theoretically be turned over to a human being in disputed cases. Unfortunately, dispute processes are often handled in an automated fashion, leading to even more problems.

Nothing was changed at all apart filling the new forced content rating form and suddenly lost all my revenues.

I hope someone human answer with details soon, but I'm joining the anger from all developers around about how #Google treat devs, take 30% share without problem but certainly do not do support or act as human when killing someone.﻿

As previously explained, your promotional images include content that you do not appear to have permission to distribute. For example, images related to films are most likely protected by the various studios that produced and released them. It is reasonable to assume that these would not be made legally available in public domain or via Creative Commons as most studios are extremely protective of their intellectual property. The same could be said of images from various TV series…

This part of Google's response refers to screenshots used in the app's listing. They used to look something like this…

The images used here are only indicative of the app's capabilities. Even if (obviously) unlicensed, the app doesn't promise anything more than control of XBMC content. It doesn't promise access to studios' offerings or otherwise act as a movie/TV show portal. In this context, the movie posters displayed in the screenshots would appear to fall under "fair use." Google's response to Yatse indicates that, even with a human now involved, the Play Store won't tolerate the use of unlicensed images in "promotional" screenshots.

In fact, fair use isn't even discussed. Instead, Google asked Yatse to prove ownership of the disputed artwork before the app could be relisted.

If you are able to prove otherwise, either via direct authorization from a studio representative or the location where you sourced these images (public domain and/or Creative Commons), we could review that information and reconsider the merits of this case.

The motivating factor for this non-consideration is potential litigation, according to the Google Play Team.

This may represent a change from two years ago in that most studios today will file complaints over use of their content unless someone has entered into an agreement with them on some level, and that should not come as a surprise to you.

Even with a direct response, there are still some gray areas the developer is left to address himself.

We are unable to provide specific guidance as to which images may be allowed, but we trust that you will use your best judgment based on what we have mentioned above and in previous communications.

As Yatse points out, this isn't good news for developers.

The answer is very interesting for all Google Play developers :

- Google will remove your application on suspicions and not on real facts. - No human will check what you upload or say. - It's nearly impossible to have a real contact and support. - You need to try to fix problem yourself without details and hope to have it fixed before ban. (Very hard when in fact there's no problem)

Google Play has moved to preemptive takedowns, unprompted by studio complaints. This isn't a good thing. It may protect Google (but only slightly, considering the studios' ongoing antipathy towards the tech company) but it does nothing for developers whose sales it takes a portion of.

In response, Yatse has swapped out the offending artwork for CC-licensed and public domain works. But even that wasn't enough for the Google bots. Those images had to be removed before his app was approved for relisting.

#Yatse is now back on Play Store, without any images until I can figure out what the Google bot does not like in open sources ones.

This understandably limits his options and makes it much harder to convey the app's functionality. Here are the screenshots currently available at Google Play, which show that Yatse (the app) is probably some sort of remote control program and has some color options.

So, based on no complaints from studios or other rights holders, an app comes down. And even with the use of properly-licensed images, it fails to be reinstated. And throughout all of the discussions, fair use isn't mentioned a single time. That's the reality of preemptive IP policing, and it's unlikely to change anytime soon.

Permalink | Comments | Email This Story
]]>and-fair-use-is-nowhere-to-be-foundhttps://www.techdirt.com/comment_rss.php?sid=20150326/07041230436Wed, 25 Mar 2015 13:48:18 PDTAccidentally Revealed FTC Document Details Some Questionable Google Practices, But Not The Ones Most People Focused OnMike Masnickhttps://www.techdirt.com/articles/20150325/05290630422/accidentally-revealed-ftc-document-detail-some-questionable-google-practices-not-ones-most-people-focused.shtml
https://www.techdirt.com/articles/20150325/05290630422/accidentally-revealed-ftc-document-detail-some-questionable-google-practices-not-ones-most-people-focused.shtmlgo after Google for antitrust violations, claiming it was eventually "overruled" by the FTC's commissioners who sided with the economic bureau that felt there was no real antitrust violations in Google's practices. The WSJ got its hands on part of the internal report by accident -- saying that the FTC inadvertently handed it over as a response to a different FOIA request, but that it was only part of the internal report. Late yesterday, the WSJ released the document it received (which you can see here in PDF form). Somewhat bizarrely, it's every other page of the report, suggesting some sort of weird screwup inside the FTC.

I recommend reading through the whole thing (the final third is all footnotes, but they're also super interesting). It details a variety of background tidbits about the search industry, some of which have never been revealed before. If you want an annotated version, I highly recommend reading Danny Sullivan's live tweets as he read through the report and the footnotes.

However, now that we get to read all the details, it seems like the Wall Street Journal oversold the story. It doesn't really show a huge conflict within the FTC at all. Basically, the competition bureau discussed three practices that it found problematic and potentially worthy of prosecution. And, yes, the FTC eventually decided not to prosecute. But -- and this is the important part that most of the coverage seems to ignore -- the final agreement between the FTC and Google involve Google agreeing to cease two of the three questionable practices (and, frankly, the third "questionable" practice doesn't seem that questionable).

And, on top of that, the one practice that got most of the attention (both early on in the antitrust complaints against Google and in the coverage about this leaked report) -- the demoting of vertical search engine results in Google's search -- was the part that even the competition bureau found likely did not violate any antitrust laws, and was actually for the benefit of Google's users.

Specifically, most of the focus on Google's potential "anti-trust" activists has been on its impact on "competing" search engines, specifically "vertical" search engines for things like "local," "travel," and "shopping." And the report disclosed pretty clear evidence that Google purposely pushed down some of those results to promote its own results -- but there were good reasons for this, and as such, it appears that pretty much everyone at the FTC -- including those who wanted to punish Google for other things, agreed that there was no antitrust violation here. That's mostly because those efforts actually benefited consumers. And it's not difficult to see how: when you do a search on Google you want to get to results. You don't want to be sent off to another vertical search engine with another set of results. While the FTC agrees that this may harm vertical search competitors, that doesn't mean it harmed consumers. The FTC recognizes that in an effort to provide a better experience to consumers, that might harm other search engines, but that's not an antitrust violation:

Indeed, the evidence
paints a complex portrait of a company working toward an overall goal of maintaining its
market share by providing the best user experience, while simultaneously engaging in tactics
that resulted in harm to many vertical competitors, and likely helped to entrench Google's
monopoly power over search and search advertising. The determination that Google's
conduct is anticompetitive, and deserving of condemnation, would require an extensive
balancing of these factors, a task that courts have been unwilling- in similar circumstances -
to perform under Section 2. Thus, although it is a close question, Staff does not recommend
that the Commission move forward on this cause of action.

However, the report does highlight those other areas where Google's actions were a bit more questionable. The key one is in scraping the sites of vertical competitors and using their data in its own vertical offerings -- and then threatening to remove those vertical offerings from the general search if they wanted to have that data not used for vertical search activities. As the report noted, this was an internal policy choice by Google, rather than one of technical necessity:

Indeed, Google almost simultaneously launched a new reviews-collection product --
Hotpot -- to (again) try to solicit original user reviews, this time seeding it with eviews from
third-party websites with no attribution. Yelp, TripAdvisor, and CitySearch all complained
to Google. All of these parties sought removal of their user review content from Google
Placcs/Hotpot, as well as the removal of their reviews from Google's aggregated review
count on the main SERP. This time, however, Google told each company that if Yelp,
TripAdvisor, and CityScarch wanted to have their content removed from Google
Places/Hotpot, they would have to exclude their websites from being crawled by Google
altogether, which meant complete exclusion from Google's SERP. This was not technically necessary -- it was just a policy decision by Google.

As the competition bureau noted, this move -- threatening to remove those sites from overall search results if they didn't allow the use of the data to prop up its own (underperforming) vertical sites -- was clearly problematic:

Google's threat (and willingness) to
degrade its own web search product- by banishing high-quality vertical websites from its
web search results altogether- suggests that Google's motive in scraping high-quality
content from its vertical competitors was not procompetitive.

Indeed, it seems like Google could have easily agreed to remove that content from its vertical products without removing it from the general search results -- and, in fact, that was one of the things Google agreed to stop doing in its agreement with the FTC:

Google also has promised to provide all websites the option to keep their content out of Google’s vertical search offerings, while still having them appear in Google’s general, or “organic,” web search results. The FTC investigated allegations that Google misappropriated content, such as user reviews and star ratings, from competing websites in order to improve its own vertical offerings, such as Google Local and Google Shopping.

The other sketchy behavior was the way Google's Adwords API proactively blocked companies from building tools that would work with competing search ad providers (mainly Microsoft's AdCenter). Here, it appears that there was actually support within Google to do away with such restrictions, as many realized that it would be better for the overall market to allow companies to create cross-platform tools. However, Larry Page himself stepped in and blocked this plan:

In December 2008, Holden, senior vice-president of ad products Susan Wojcicki, and
others met to discuss the issue. Of the meeting, Holden wrote:

[O]ne debate we are having is whether we should eliminate our API T&Cs
requirement that AW [AdWords] features not be co-mingled with competitor
network features in SEM cross-network tools like DART Search. We are
advocating that we eliminate this requirement and that we build a much more
streamlined and efficient DART Search offering and let SEM tool provider
competitors do the same. There was some debate about this, but we concluded that it is better for customers and the industry as a whole to make things more efficient and we will maximize our opportunity by moving
quickly and providing the most robust offering.

In February 2009, Holden wrote the executive summary for a DART Search product
review, in which he advocated that Google "alter the AdWords Ts&Cs to be less restrictive
and produce the leading cross-network toolset that increases advertiser/agency efficiency."
Such a move, he wrote, would "[r]educe friction in the search ads sales and management
process and grow the industry faster." In April 2009, in light of evident disapproval from
Larry Page about the idea of removing the co-mingling restriction, Holden wrote: "We've
heard that and we will focus on building the product to be industry-leading and will evaluate
it with him when it is done and then discuss co-mingling and enabling all to do it."

It's good to see that within Google they wanted to remove these restrictions, and recognized that a more open, less-restrictive API would have resulted in a better overall experience. It's unfortunate that Larry Page stepped in to block that, and actually this was a part of the final FTC settlement, where the FTC agreed not to prosecute the company. It didn't get much attention at the time, but Google "agreed to give online advertisers more flexibility to simultaneously manage ad campaigns on Google’s AdWords platform and on rival ad platforms."

Frankly, it seems like these two issues -- both of which it agreed to stop doing -- were clearly bad decisions on Google's part, and it's a good thing that the company is no longer doing either. Both appear to go against the basic principles that Google often sets out for itself publicly, in terms of promoting openness and improving the overall ecosystem.

As for the third "bad" practice -- that one seems a bit more bizarre and it's no wonder that the FTC eventually decided not to do anything. The competition bureau argued that Google used exclusive deals to prevent partners from also working with Microsoft, and this may have cost Microsoft some business. However, there wasn't much evidence to support this in reality, and the report notes that most of the various partners don't even seem particularly bothered by this setup. They could negotiate different deals and weren't too worried about negotiating exclusive deals. It's not all that surprising that the FTC eventually just let that issue drop.

In the end, the document is really interesting and worth reading (even if you're only reading every other page). It certainly highlights a few questionable activities on Google's part that we're glad it agreed to stop doing. It seems like if Google just continued to focus on providing the best overall offering and promoting a more open internet, it never would have gotten into that mess in the first place -- and hopefully that's a lesson that Google will remember going forward.

Either way, as some have been pointing out, it seems like the FTC made the right decision in not prosecuting, as the competitors that the FTC was worried about have been growing pretty rapidly since then, while Google's market position has been declining. Such is the nature of the rapidly changing internet...

Permalink | Comments | Email This Story
]]>fascinating-stuffhttps://www.techdirt.com/comment_rss.php?sid=20150325/05290630422Wed, 25 Mar 2015 10:40:35 PDTGoogle's Ridiculous AdSense Morality Police Strike AgainMike Masnickhttps://www.techdirt.com/articles/20150325/05504930423/googles-ridiculous-adsense-morality-police-strike-again.shtml
https://www.techdirt.com/articles/20150325/05504930423/googles-ridiculous-adsense-morality-police-strike-again.shtmlthreatened to cut off all of our ads (which they had just spent months begging us to use) because the ads showed up on this page, which has a story about a publicity rights dispute concerning a music video that includes someone dancing suggestively around a pole. The morality police at AdSense argued that this news story -- which was about a legal dispute concerning the video -- somehow violated AdSense's terms against putting the ads on content including "strategically covered nudity" and "lewd or provocative poses." Apparently, the AdSense team has no "newsworthy" exception to these idiotic policies.

After that story was posted, we heard from people inside Google who insisted that they were pushing the AdSense team to deal with similar situations in a much smarter way: such as simply turning off the ads on those individual pages rather than killing entire accounts. But, frankly, even that is pretty pointless. Why not fix AdSense's terms so that having ads appear on a news story about such content doesn't trigger the threat to shut down AdSense altogether?

It appears that the AdSense morality police still haven't figured this out. Last week a similar kerfuffle arose when the AdSense team threatened antiwar.com because it had an article (from a while back) that posted the infamous photos of US soldiers mistreating prisoners at the Abu Ghraib prison in Iraq. Those photos are famous for their newsworthiness, and yet Google AdSense said they were a terms of service violation for being "violent or disturbing content, including sites with gory text or images."

As with the threat to kill our own AdSense account, this is simply idiotic. Yes, Google can set whatever terms and conditions it wants for sites to use AdSense, but acting as morality police -- especially over newsworthy content on news websites -- is profoundly stupid and shortsighted. We had hoped that our experience with a similarly ridiculous policy decision by Google last year would convince the company to fix its policies. Unfortunately, it appears that Google is still playing morality police and trying to dictate editorial choices.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Permalink | Comments | Email This Story
]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100802/22582710463Thu, 19 Mar 2015 06:18:32 PDTTelco Analyst Compares Google Fiber To Ebola... Completely Misses The PointKarl Bodehttps://www.techdirt.com/articles/20150312/15073030307/while-google-fibers-footprint-remains-small-its-overall-impact-broadband-market-has-been-invaluable.shtml
https://www.techdirt.com/articles/20150312/15073030307/while-google-fibers-footprint-remains-small-its-overall-impact-broadband-market-has-been-invaluable.shtmlhighlighting this fact on a daily basis. The company's decision to jump into the broadband market and offer symmetrical 1 Gbps connections for $70 a month (with no obnoxious fees) quickly resulted in thousands of cities all over the country falling over themselves to get Google's attention. In the process, Google was able to not only highlight the overall lack of broadband competition, but also other notably less-sexy (and therefore overlooked) issues like state protectionist community broadband bans. The free marketing in every paper nationwide is of course just an added perk for Google.

Of course, not everybody's so easily impressed. Telecom industry analyst Craig Moffett, who has made a name for himself being rather wrong about things (whether that's predicting the collapse of the wireless industry or pretending cord cutters don't exist), this week poured cold water on Google's efforts by highlighting just how few subscribers Google actually has. In a research note, Moffett notes that Google Fiber has just 30,000 subscribers, and this is somehow proof positive that Google Fiber isn't a big deal. Like, you know....Ebola:

"To Cable & Satellite investors, Google Fiber is a bit like ebola: very scary and something to be taken seriously," telecom industry analyst Craig Moffett wrote in a research note to investors this week. "But the numbers are very small, it gets more press attention than it deserves, and it ultimately doesn't pose much of a risk (here in the US at least)."

The unfortunate tasteless use of a bad metaphor aside, Moffett's not really seeing the big picture when it comes to Google Fiber's impact. As we've noted previously, Google Fiber isn't just about deploying faster, cheaper broadband connections (though Google has made it clear it wants a sustainable business). Google Fiber's been largely about highlighting a lack of competition and lighting a fire under all-too-comfortable duopolists. As the project has expanded, Google has made a point of offering cities a checklist (pdf) helping to make deployment easier, whether it's Google or somebody else doing the building.

Moffett looked to the U.S. Copyright Office to get the total subscriber counts (it tracks video subscribers because of compulsory license fee requirements). It's worth noting however that the USCO doesn't track broadband subscriber totals, and most Google Fiber customers are likely to be skipping traditional video and embracing over-the-top video services, so the actual numbers are likely higher. It's also worth noting that Google's on the cusp of a major new expansion into Raleigh/Durham, Charlotte, Atlanta, and Nashville, with potential Portland, Phoenix, Salt Lake City, San Antonio and San Jose launch announcements later this year. It's a slow drum beat, but it's a steady one.

In other words, while it's true Google Fiber has probably seen some overhype and most incumbent ISPs don't face an immediate competitive threat, looking at subscriber totals and declaring it a non-starter for the telecom industry is pretty narrow thinking. Google Fiber not only shines a spotlight on the lack of meaningful broadband competition, it has sparked the public's imagination and fueled a national conversation about how we can do broadband better.

Permalink | Comments | Email This Story
]]>making-duopolists-sweathttps://www.techdirt.com/comment_rss.php?sid=20150312/15073030307Tue, 17 Mar 2015 12:44:00 PDTJudicial Committee Gives FBI The First OK It Needs To Hack Any Computer, Anywhere On The PlanetTim Cushinghttps://www.techdirt.com/articles/20150317/07440430342/judicial-committee-gives-fbi-first-ok-it-needs-to-hack-any-computer-anywhere-planet.shtml
https://www.techdirt.com/articles/20150317/07440430342/judicial-committee-gives-fbi-first-ok-it-needs-to-hack-any-computer-anywhere-planet.shtml
The FBI and DOJ are one step closer to having one of their "keeping up with the digital Joneses" requests granted. While the default phone encryption offered by Apple (and at some point in the future by Google) still remains free of law enforcement/intelligence "Golden Backdoors," the agencies are one step closer to being legally permitted to hack nearly any computer in the world.

The Judicial Conference Advisory Committee on Criminal Rules voted 11-1 to modify an arcane federal rule to allow judges more flexibility in how they approve search warrants for electronic data, according to a Justice Department spokesman.

No longer bound by physical jurisdictions, the FBI will be able to perform remote searches all over the globe. This is its "21st century" fix -- a permission slip to implant malicious software in any computer, located anywhere, in order to track suspected criminals. That performing these actions may strain international relationships or break local laws is just the acceptable collateral damage inherent to modern-day crimefighting.

There's still plenty of time left before it goes into effect, and several chances that this rule change might be found to be just as potentially damaging -- both to the Fourth Amendment and rights of citizens in other nations -- as tech companies and privacy advocates are portraying it.

The judicial advisory committee's vote is only the first of several stamps of approval required within the federal judicial branch before the the rule change can formally take place—a process that will likely take over a year. The proposal is now subject to review by the Standing Committee on Rules of Practice and Procedure, which normally can approve amendments at its June meeting. The Judicial Conference is next in line to approve the rule, a move that would likely occur in September.

The Supreme Court would have until May 1, 2016 to review and accept the amendment, which Congress would then have seven months to reject, modify or defer. Absent any congressional action, the rule would take place on Dec. 1, 2016.

While the fight against the rule change will continue, its procession through the next couple of steps will likely be as quiet as its passage by the judicial advisory panel. Those in the position to shut this down are going to find it hard to argue against law enforcement and national security talking points.

Any light shed on "arcane" federal rules and laws should throw a bit on other outdated pieces of legislation, like the CFAA or the Stored Communications Act, which are more in need of an update than Rule 41. Of course, the DOJ likes those the way they are, what with their broad language and deference to law enforcement. Rather than bring American citizens "up to date" with fixes to those bad laws, we'll likely instead receive expanded government power with no corresponding bump for the governed. And as for the rest of the world -- it will be playing by our rules, whether it wants to or not.

Permalink | Comments | Email This Story
]]>the-world-is-yourshttps://www.techdirt.com/comment_rss.php?sid=20150317/07440430342Tue, 17 Mar 2015 06:15:00 PDTFrance To Require Internet Companies To Detect 'Suspicious' Behavior Automatically, And To Decrypt Communications On DemandGlyn Moodyhttps://www.techdirt.com/articles/20150317/04460230337/france-to-require-internet-companies-to-detect-suspicious-behavior-automatically-to-decrypt-communications-demand.shtml
https://www.techdirt.com/articles/20150317/04460230337/france-to-require-internet-companies-to-detect-suspicious-behavior-automatically-to-decrypt-communications-demand.shtmlwilling to give up any freedom in the illusory hope of gaining some security. According to a story in Le Figaro, even worse is to come in the shape of a new law (original in French, found via @gchampeau):

[the proposed law] wants to force intermediaries to "detect, using automatic processing, suspicious flows of connection data". Internet service providers as well as platforms like Google, Facebook, Apple and Twitter would themselves have to identify suspicious behavior, according to instructions they have received, and pass the results to investigators. The text does not specify, but this could mean frequent connections to monitored pages.

As well as being extremely vague, none of this "automatic detection" will require a warrant, which means that the scope for abuse and errors will be huge. And then there's this:

The Intelligence bill also addresses the obligations placed on operators and platforms "concerning the decryption of data." More than ever, France is keen to have the [encryption] keys necessary to read intercepted conversations, even if they are protected.

As we've noted before, there is a global push to demonize encryption by presenting it as a "dark place" where bad people can safely hide. What's particularly worrying is that the measures proposed by France are easy to circumvent using client-side encryption. The fear has to be that once the French government realizes that fact, it will then seek to control or ban this form too.

Permalink | Comments | Email This Story
]]>going-from-bad-to-worsehttps://www.techdirt.com/comment_rss.php?sid=20150317/04460230337Mon, 16 Mar 2015 10:26:00 PDTInternet Brands Targets Techdirt Post For Removal Because Of 'Infringing' Comment Left By A ReaderTim Cushinghttps://www.techdirt.com/articles/20150316/08140730324/internet-brands-targets-techdirt-post-removal-because-infringing-comment-left-reader.shtml
https://www.techdirt.com/articles/20150316/08140730324/internet-brands-targets-techdirt-post-removal-because-infringing-comment-left-reader.shtml
The DMCA takedown notice allows rights holders to perform targeted removals of infringing… I can't even finish that sentence with a straight face. IN THEORY, it can. In reality, it often resembles targeting mosquitoes with a shotgun. Collateral damage is assumed.

Case in point: Internet Brands recently issued two takedown requests to protect some of its cruelty-free, farmed content originating at LawFirms.com. It's this phrase -- taken verbatim from LawFirms' "Penalties for Tax Evasion" -- that has triggered the takedown notices from Internet Brands.

Tax evasion refers to attempts by individuals, corporations or trusts to avoid paying the total amount of taxes owed through illegal means, known as tax evasion fraud.

The second (at least according to Google's non-numeric sorting) is a repeat of the first, except for the addition of a Techdirt post. At first glance, the targeting of this article by Tim Geigner -- "Dear Famous People: Stop Attempting Online Reputation Scrubbing; I Don't Want To Write Streisand Stories Anymore" -- would appear to be exactly the sort of behavior Dark Helmet was decrying. But it isn't.

The phrase triggering the Internet Brands takedown can be found in a very late arrival to the comment thread, more than one-and-a-half years after the original post went live. It opens up with this:

This is a very interesting. I read the whole article at New York Magazine. So someone is accused of tax evasion and then charges are dropped and then tries to clean up his reputation.... nothing wrong with that.

Then, for no apparent reason, the commenter drops in the LawFirms.com paragraph highlighted above.

Now, here's the problem. If blogs and other sites are reposting others' content without permission, that's one thing. But targeting whole posts for delisting just because a commenter copy-pasted some content is abusive. It could very possibly take out someone else's created content -- covered under their copyright. Using a DMCA notice in this fashion can allow unscrupulous rights holders to bypass Section 230 protections -- effectively holding site owners "responsible" for comments and other third-party posts by removing the site's original content from Google's listings.

From the looks of it, Internet Brands did nothing more than perform a google search for this phrase and issue takedown notices for every direct quote that originated from somewhere other than its sites. It didn't bother vetting the search results for third-party postings, fair use or anything else that might have made its takedown request more targeted. Internet Brands doesn't issue many takedowns, so it's not as though its IP enforcement squad had its hands full. In fact, there's every reason to believe actual humans are involved in this process, rather than just algorithms -- all the more reason to handle this more carefully. Here's a little bit of snark it inserted into a 2014 DMCA takedown notice.

The interview and photos are published on our website and permission hasn't been granted for anyone else to republish them. Not only is the content stolen it out ranks our website in a Google search for the keyword "th taylor". So much for Google being able to identify the source of original content!

If a company has the time to leave personal notes for Google (which doesn't have the time to read them), then it has time to ensure its requests aren't targeting the creative works of others just to protect its own. The DMCA notice is not some sort of IP-measuring contest with Google holding the ruler. If Internet Brands thinks it is -- or just hasn't bothered to vet its takedown requests before sending -- it's usually going to be the one coming up short. If Google doesn't ignore the request, those on the receiving end of a bogus takedown will make a lot of noise. Either way, it''s accomplished nothing.

Permalink | Comments | Email This Story
]]>not-how-that's-supposed-to-workhttps://www.techdirt.com/comment_rss.php?sid=20150316/08140730324Thu, 12 Mar 2015 04:15:46 PDTGoogle Denies Narrow Warrant Request For Emails; Government Responds By Asking For Everything EverTim Cushinghttps://www.techdirt.com/articles/20150306/19462730235/google-denies-narrow-warrant-request-emails-government-responds-asking-everything-ever.shtml
https://www.techdirt.com/articles/20150306/19462730235/google-denies-narrow-warrant-request-emails-government-responds-asking-everything-ever.shtmlMagistrate's Revolt appears out of the unlikeliest of districts: Alaska. The court order, first pointed out by ACLU's chief tech sorcerer, Chris Soghoian, features Judge Kevin McCoy telling the government to take its overly-broad search warrants and hit the road. Well, mostly. The order is without prejudice, which means the government still has options available, but from what's stated by the judge, it won't be the latest option the government deployed.

The case details are a bit thin. With the exception of this court order, the rest of the documents are under seal. It deals with an investigation of Craigslist ads allegedly soliciting sexual contact with minors. The ad was reported to authorities by a Craigslist user. Law enforcement officials detained the person who placed the ad, who then admitted to being in possession of child porn, as well as being interested in sexual relations with children.

With the perp nailed down, law enforcement went after those who answered the ad. A subpoena turned up six Gmail addresses, as well as the dates and frequency of contact with the email address linked to the offending ad.

Four of the six email addresses obtained received either a single response or no response from the Craigslist poster, suggesting a lack of ongoing negotiations for the sexual services of a minor. The other two, however, received multiple responses, suggesting negotiations had moved ahead.

Law enforcement then sought to obtain the content of the messages to the Yahoo email address of the detained suspect. That's where it ran into trouble. Rather than narrow its demands to the two accounts with the most activity, it requested content from all ad respondents. It did, however, specify a date range specifically surrounding the posting of the ad. This was approved by a magistrate judge and served to Google.

Google turned the warrant down, citing technical difficulties..

We have received your Search Warrant and after evaluating the items to be seized, we have determined that Google is not capable of identifying the specific records responsive to your request as currently described in the warrant. Because our production must adhere to the stated limits of the warrant, and we are unable to do so in this case, we require amended or re-issued process.

That's when things started to go a bit sideways.

Rather than seek an order compelling Google to comply with the original warrant, the government presented the Court with a second application. The agent explained that “Google was unable to comply with the warrant as written because the time frame was too narrow,” “Google is unable or unwilling to parse individual accounts for” the specific emails, and “Google typically provide[s] broad ranges of information and place[s] the burden on the law enforcement officer searching the information to stay within the parameters of the warrant.”

Perhaps Google was bluffing or it was simply tired of "providing broad ranges of information" to every government agency that came knocking. Whatever the case, the government's next move suggests it was stunned by Google's (apparently out-of-character) refusal… or its somewhat unbelievable claim that "records" from that time period simply could not be located. The government already had a judge clear the previous warrant application and give it the Fourth Amendment thumbs-up. It would have been incredibly simple to approach the same judge for a court order compelling the release of the records. What it did instead was strip the Fourth Amendment-friendly language from the previous application and present it to a different magistrate judge.

[T]he government’s second warrant requests authorization to seize the six third-party Gmail accounts in their entirety. Once the contents of the accounts are in its possession, the government appears to promise not to look at any emails outside the applicable date ranges. However, the warrant would not limit its ability to search the entirety of the Gmail accounts as the proposed warrant plainly authorizes the inspection of all email content in the accounts without regard to how remote in time or unrelated that content is to the current investigation.

So, to "fix" a Fourth Amendment-compliant warrant -- one that sought specific emails from a very narrow time frame -- the government went the other way, basically saying, "The hell with it. Give us EVERYTHING." Judge McCoy seems somewhat astounded by the government's Plan B: a 90% breathtaking audacity/10% vindictiveness warrant app that came nowhere near even the most minimal of Fourth Amendment standards.

Based on these probable-cause conclusions, a narrow intrusion into the email accounts is warranted. But the present application goes well beyond the narrow intrusion justified by the probable cause showing. It seeks judicial authorization to seize and then search the entire content of the six third-party Gmail accounts with no justification other than that Google has unilaterally elected not to comply.

In less subtle terms, the government behaved like a child when it was told, "No." Judge McCoy's order tells the government to grow up.

[T]he Court reiterates that the government has two alternative avenues through which to seize and search the sought-after emails. First, the government remains free to seek an order compelling Google to comply with the earlier warrant provided it limits the request to email content for the narrowly defined periods relevant to the investigation of the six third-party Gmail accounts. Alternatively, the government can renew the instant application provided it proffers to seal, without any review absent further court order, material supplied by Google that is outside the time period for which probable cause has been established.

Do it right or don't do it at all. At the very least, don't swing from one end of the Fourth Amendment spectrum to the next just because the warrant recipient doesn't immediately comply. Turning a narrow warrant into a general warrant is no way to run a law enforcement agency. And stomping all over the rights of others just because you're pissed off at being refused is no way to treat the people who pay your salaries.

Permalink | Comments | Email This Story
]]>Plan-B-for-'British'https://www.techdirt.com/comment_rss.php?sid=20150306/19462730235Mon, 9 Mar 2015 09:14:50 PDTMPAA Abusing DMCA Takedowns To Attempt A Poor Man's SOPAMike Masnickhttps://www.techdirt.com/articles/20150307/16554730245/mpaa-abusing-dmca-takedowns-to-attempt-poor-mans-sopa.shtml
https://www.techdirt.com/articles/20150307/16554730245/mpaa-abusing-dmca-takedowns-to-attempt-poor-mans-sopa.shtmlfailed miserably. The followup idea was even worse: known as full site blocking, the idea was to convince countries to pass laws that would force ISPs, search engines, domain registrars and others to completely block access not just to infringing content, but to entire sites that the legacy copyright industries deemed "bad."

This was always problematic on a few different levels. First, the entertainment industry has a rather horrible track record of declaring some new innovation "bad" and "illegal" when it shows up on the scene, only much later realizing that the "bad" or "illegal" thing is actually exactly what consumers are looking for. In the past, the industry has attacked radio, television, the VCR, the photocopier, the DVR, the MP3 player and YouTube (among many other things). Giving Hollywood a full on veto for any new technology, before it's had a chance to grow, thrive and show how useful it can be, seems like a great way to kill off innovation. Yet, that's what Hollywood wants. Second, the concept of site blocking itself is incompatible with some of the very fundamentals of the internet. It breaks DNS, it creates big security problems, and it has tremendous collateral damage (not that Hollywood gives a shit about that).

The original site blocking plan was to pass SOPA in the US, which had site blocking provisions. It was seen as a slam dunk easy win by Hollywood, until suddenly, it wasn't (thanks to the internet speaking up loudly). But, similar strategies have worked better in other countries, as courts have often ordered ISPs to block certain sites, often with little review and almost no due process. Yet, as we discovered thanks to the Sony Hack last year, the MPAA is still 100% focused on figuring out ways to implement full site blocking, even as its internal discussion admits it has no idea about the technological feasibility of it. Instead, it's pushing on a few different fronts, from trying to get states Attorneys General involved to abusing the process at the International Trade Commission to "block" sites "at the border."

However, it appears that the latest strategy is just to file a bunch of bogus DMCA takedown notices to Google on the top level domain, rather than on specific content. It's no secret that the MPAA has been asking Google to implement full site blocking for quite some time -- even though doing so wouldn't actually help (because instead of the sites, you'd just get people telling you how to get to those sites or you'd get even sketchier sites). TorrentFreak noticed that the MPAA issued a bunch of questionable DMCA notices on top level domains recently, nearly all of which Google rightly rejected. The law is pretty clear that you have to be identifying the specific work to be taken down, rather than just generally pointing to a site.

The MPAA knows this, which makes the sending of a bunch of top level domains... bizarre. (TorrentFreak also points out that the MPAA may have even sent its own mpaa.org domain in a DMCA notice, but there's a decent chance that that's just someone playing a prank). The decision to file such clearly bogus DMCA notices, from an organization that is so totally focused on site blocking and which has large groups of lawyers looking for every angle to bring in full site blocking... suggests that this isn't just the MPAA getting lazy. Instead, it may be part of a plan to try to set up a test case, in which the MPAA sues over getting Google to remove an entire domain, based solely on a takedown (or series of takedowns) on that top level domain. If so, that would be an astoundingly stupid ploy -- one that the MPAA would have a high likelihood of losing. But perhaps desperate times at the MPAA call for desperate measures. Of course, we're still wondering when the folks over at the MPAA will get desperate enough to focus on giving people what they want, rather than treating them all as criminals.

Permalink | Comments | Email This Story
]]>good luck with thathttps://www.techdirt.com/comment_rss.php?sid=20150307/16554730245Fri, 6 Mar 2015 14:49:03 PSTSpanish Court Limits Scope Of EU's Right To Be ForgottenGlyn Moodyhttps://www.techdirt.com/articles/20150306/03342530222/spanish-court-limits-scope-eus-right-to-be-forgotten.shtml
https://www.techdirt.com/articles/20150306/03342530222/spanish-court-limits-scope-eus-right-to-be-forgotten.shtml
EU's 'right to be forgotten' is still relatively new -- the original ruling was made less than a year ago. Since then, the EU courts and companies have been trying to work out what it means in practice, which has led to somebroadening of its reach. But an interesting court ruling in Spain seems to limit its scope. It concerns the following case, reported here by Stanford's Center for Internet and Society:

The claimant was a Spanish citizen who found that when typing his name on Google Search, the results included a link to a blog with information about a crime he had committed many years ago. While the official criminal records had already been cancelled, the information was thus still findable on the internet.

The Spanish Data Protection Authority (DPA) made two rulings. One was that Google should remove the information from its search engine, and the other was that Google should remove personally identifiable information from a blog hosted on its Blogger platform. When these decisions were reviewed by Spain's National High Court, it confirmed the first ruling, and clarified that Google needed to remove the link to the criminal records information from its search results. However, it did not confirm the second ruling:

The National High Court reversed that and held that the responsible for the processing is not Google but the blog owner. It further held that the DPA cannot order Google to remove the content within a procedure for the protection of the data subject's right to erasure and to object.

This is significant, because it says the "controller of the processing" -- a key concept in EU data protection law -- is the blog owner, not Google, and so the latter cannot be forced to take down a blog post. The Center for Internet and Society post notes:

Arguably, under the rationale that the platform is not the controller of the processing, other user generated content sites such as YouTube or social networking sites might also fall outside the scope of the right to be forgotten.

Well, not entirely outside the scope: presumably, search engines could still be required to remove links to user-generated content, but it would be the creator of that content that would be asked to remove it entirely, not the hosting company. Clearly, further cases will be needed to clarify how exactly this will work in Spain, and whether it applies anywhere else.

Permalink | Comments | Email This Story
]]>more-clarity-neededhttps://www.techdirt.com/comment_rss.php?sid=20150306/03342530222Fri, 6 Mar 2015 09:29:00 PSTMississippi Attorney General Jim Hood Demands $2,100 To Reveal The Emails He's Had With The MPAAMike Masnickhttps://www.techdirt.com/articles/20150305/06420930214/mississippi-attorney-general-jim-hood-demands-2100-to-reveal-emails-hes-had-with-mpaa.shtml
https://www.techdirt.com/articles/20150305/06420930214/mississippi-attorney-general-jim-hood-demands-2100-to-reveal-emails-hes-had-with-mpaa.shtmlJim Hood and his campaign against Google. A few years ago, we noted how bizarre it was that Hood and other state Attorneys General seemed to be blaming Google for all kinds of bad things online. It seemed to show a fundamental lack of understanding about how the internet (and the law!) worked. Of course, things became somewhat more "understandable" when emails leaked in the Sony Hack revealed that the MPAA had an entire "Project Goliath" designed around attacking Google, and the centerpiece of it was funding Jim Hood's investigation into Google, including handling most of the lawyering, writing up Hood's letters to Google and even the "civil investigative demand" (CID -- basically a subpoena) that he could send.

Hood lashed out angrily about all of this, even as the NY Times revealed that the metadata on the letter he sent Google showed that it was really written by top MPAA lawyers. Hood continued to angrily lash out, demonstrating how little he seemed to understand about the internet. He made claims that were simply untrue -- including pretending that Google would take users to Silk Road, the dark market hidden site that could never be found via a Google search. Hood also dared reporters to find any evidence of funding from Hollywood, and it didn't take us long to find direct campaign contributions to his PAC from the MPAA and others.

Given all of this, we filed a Mississippi Public Records request with his office, seeking his email communications with the MPAA, its top lawyers and with the Digital Citizens Alliance, an MPAA front-group that has released highly questionable studies on "piracy" and just so happened to have hired Hood's close friend Mike Moore to lobby Hood in Mississippi. Moore was the Mississippi Attorney General before Hood and helped Hood get into politics.

We've had to go back and forth with Hood's office a few times. First, his office noted that Google had actually filed a similar request, and wanted to know if we were working for Google in making the request. We had no idea Google made such a request and certainly were not working on behalf of Google in making our request -- but Hood's office helpfully forwarded us Google's request, which was actually a hell of a lot more detailed and comprehensive than our own. This actually is helpful in pointing to some other areas of interest to explore.

However, after some more back and forth, Hood's office first said that it would refuse to share the emails between Hood and the MPAA's lawyers as they "constitute attorney-client communications" or "attorney work product" and that finding the rest of the emails would... require an upfront payment of $2,103.10:

In response to your request for e-mails between this office and the Motion Picture
Association of America or the Digital Citizens Alliance, we estimate it will take our IT
department five hours to conduct searches for e-mails responsive to your request. The hourly
figure for the lowest paid employee able and available to do this work is $30.62, for a total of
$153.10.

The documents will then have to be reviewed to determine if they fall under the definition
of "public records" as defined by Miss. Code Ann. §25-61-3(b), and if they are otherwise
exempt from the Public Records Act. At this time, a rough estimate of the amount of time to
review the requested records is thirty hours. At $65 per hour, the total, conservative estimate to
review your request is $1,950. Pursuant to statute, these total estimated costs of $2,103.10 must
be paid in advance. We will revise the estimate as necessary after the search is completed and
we have a better idea of how many documents must be reviewed. Of course, if we are able to
fulfill your request for less than the estimate, then we will refund the difference to you.

I had one further back and forth with the office, asking why these estimates seemed so high. In this day and age, how could it honestly take five hours to run a search on an email system? More importantly, how could it possibly take 30 hours of high priced time to review each document like that? I may not be a FOIA master like Jason Leopold, but I've never seen a response to a FOIA request like this. Normally, when a journalist is seeking records, it's fairly standard to exempt fees, but it seems clear that Jim Hood's office doesn't want these emails getting out, so it's not going to do that.

It also is already telegraphing the fact that it's likely not going to release any of the emails that actually matter, claiming that they are either "attorney work product" or "investigative reports." While Hood's office says there are "nearly 900 emails" responsive to my request, it expects most of them to be exempt from public records requests. Thus, all we'd end up doing is forking over $2,103.10 that we don't have to Jim Hood's office to use to further its own efforts. I have no interest in further funding Hood attempting to attack fundamentals of free speech and the internet, but this little bit of obstructionism certainly is suggestive of the way Hood's office operates, and its absolute fear of transparency.

It certainly makes you wonder why his office is so afraid to release those emails? The Sony Hack certainly revealed some questionable activities going on between Hood, the MPAA, its lawyers and the Digital Citizens Alliance. If Hood's work with the MPAA and its lawyers and partners were truly above board, and Hood were truly committed to transparency, you'd think his office would be eager to release the emails and clear up any misconception. Unfortunately, they'd rather demand thousands of dollars from a small blog. That says a lot.

Permalink | Comments | Email This Story
]]>shake-downhttps://www.techdirt.com/comment_rss.php?sid=20150305/06420930214Tue, 3 Mar 2015 17:00:00 PSTDailyDirt: Computers Are Learning How To Play More Video Games, But They'll Never Appreciate A Good Game?Michael Hohttps://www.techdirt.com/articles/20100727/04213210378/dailydirt-computers-are-learning-how-to-play-more-video-games-theyll-never-appreciate-good-game.shtml
https://www.techdirt.com/articles/20100727/04213210378/dailydirt-computers-are-learning-how-to-play-more-video-games-theyll-never-appreciate-good-game.shtmlplay all kinds of games and even beat the best humans at them. So far, we're not worried about AI that can beat us at chess or Jeopardy, but maybe we'll be more worried when a computer can program another computer to play chess at a grandmaster level. Luckily, there's at least one billionaire willing to chip in a few million bucks to try to keep Terminators from destroying humanity.

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Permalink | Comments | Email This Story
]]>urls-we-dig-uphttps://www.techdirt.com/comment_rss.php?sid=20100727/04213210378Tue, 3 Mar 2015 15:38:00 PSTDisappointing: Google Not Yet Requiring Phone Makers To Encrypt By DefaultMike Masnickhttps://www.techdirt.com/articles/20150303/06323830192/disappointing-google-not-yet-requiring-phone-makers-to-encrypt-default.shtml
https://www.techdirt.com/articles/20150303/06323830192/disappointing-google-not-yet-requiring-phone-makers-to-encrypt-default.shtmland Google announced that their mobile platforms would be encrypted by default (for local storage, not for data transmissions), which has kicked off something of a new round of Crypto Wars, as law enforcement types have shoved each other aside to spread as much possible FUD about the "dangers" of mobile encryption (ignoring that they also recommend mobile encryption to keep your data safe).

However, as Ars Technica reported earlier this week, it appears that while Google is encrypting by default on its own Nexus phones that have the latest Android (Lollipop), it slightly eased back the requirements for its OEM partners such as Motorola and Samsung who make their own devices. Default encryption is now "very strongly RECOMMENDED" rather than required. And even with that "very strong RECOMMENDATION," it appears that neither Samsung or Motorola are enabling default encryption on its latest devices.

While some will likely jump to the conclusion that law enforcement pressure is at work here, a much more likely explanation is just the performance drag created by encryption. Last fall, Anandtech did some benchmarking of the Nexus 6 both with encryption on and off, and as the site itself says, the results are "not pretty." Given the competitive market, there's a decent chance that the big phone manufacturers didn't want to get bad benchmark ratings when phones are compared, and those made the decision to go against the "very strong recommendation."

Hopefully this gets sorted out quickly, as phonemakers can optimize new phones for encryption. And, honestly, as the Anandtech report itself notes, these benchmarks are basically meaningless for real world performance:

The real question we have to ask is whether or not any of these storage benchmarks really matter on a mobile device. After all, the number of intensive storage I/O operations being done on smartphones and tablets is still relatively low, and some of the situations where NAND slowdowns are really going to have an effect can be offset by holding things in memory.

But, it appears, while mobile phone makers don't want to take the chance of bad benchmarks hurting their reputation, they're less concerned about leaving consumers' data exposed.

It's disappointing that this is where things are today, after so much focus on default encryption just a few months ago, but hopefully it's just a temporary situation and we'll get to default encryption very, very soon.

Permalink | Comments | Email This Story
]]>get-things-up-to-speedhttps://www.techdirt.com/comment_rss.php?sid=20150303/06323830192Tue, 3 Mar 2015 13:30:00 PSTPresident Obama Complains To China About Demanding Backdoors To Encryption... As His Administration Demands The Same ThingMike Masnickhttps://www.techdirt.com/articles/20150303/07065030193/president-obama-complains-to-china-about-demanding-backdoors-to-encryption-as-his-adminisration-demands-same-thing.shtml
https://www.techdirt.com/articles/20150303/07065030193/president-obama-complains-to-china-about-demanding-backdoors-to-encryption-as-his-adminisration-demands-same-thing.shtmlfreaking out about mobile encryption and demanding backdoors, that China was also saying that it wanted to require backdoors for itself in encrypted products. Now, President Obama claims he's upset about this, saying that he's spoken directly with China's President Xi Jinping about it:

In an interview with Reuters, Obama said he was concerned about Beijing's plans for a far-reaching counterterrorism law that would require technology firms to hand over encryption keys, the passcodes that help protect data, and install security "backdoors" in their systems to give Chinese authorities surveillance access.

"This is something that I’ve raised directly with President Xi," Obama said. "We have made it very clear to them that this is something they are going to have to change if they are to do business with the United States."

This comes right after the US Trade Rep Michael Froman issued a statement criticizing China for doing the same damn thing that the US DOJ is arguing the US should be doing:

U.S. Trade Representative Michael Froman issued a statement on Thursday criticizing the banking rules, saying they "are not about security – they are about protectionism and favoring Chinese companies".

"The Administration is aggressively working to have China walk back from these troubling regulations," Froman said.

Just last week, Yahoo's chief security officer Alex Stamos raised this exact issue with NSA director Admiral Mike Rogers, asking if Rogers thinks it's appropriate for tech companies to build backdoors for other countries if they build them for the US. Rogers ignored the question, just saying "I think we can work our way through this," which is not an answer. And now we're "working our way through this" by having to deal with other countries, such as China, leaping at this opportunity.

And the week before, President Obama himself claimed that he was all for strong encryption, but argued that there were tradeoffs worth discussing, and that some in his administration believed that demanding backdoors made sense to try to stop terrorist attacks. But it's tough to see how he can claim that it's okay to entertain those ideas on the one hand, while using the other hand to try to slap China for doing the exact same thing.

As security researcher Matthew Green rightly points out, "someday, US officials will look back and realize how much global damage they've enabled with their silly requests for key escrow." But that day is apparently not today.

The administration keeps bleating on and on about how China is a massive cybersecurity "threat" out there, and then hands the country this massive gift by having a kneejerk reaction to better encryption that protects American citizens.

Permalink | Comments | Email This Story
]]>ironyhttps://www.techdirt.com/comment_rss.php?sid=20150303/07065030193Mon, 2 Mar 2015 12:26:00 PSTCourt Doesn't Buy Mississippi Attorney General Jim Hood's Argument: Puts His Google Demands On HoldMike Masnickhttps://www.techdirt.com/articles/20150302/10410330186/court-doesnt-buy-mississippi-attorney-general-jim-hoods-argument-puts-his-google-demands-hold.shtml
https://www.techdirt.com/articles/20150302/10410330186/court-doesnt-buy-mississippi-attorney-general-jim-hoods-argument-puts-his-google-demands-hold.shtmlstop a ridiculously broad subpoena issued by Mississippi Attorney General Jim Hood. For quite some time now, Hood has been publicly attacking Google, based on what appears to be near total ignorance of both the law and technology. Oh, and maybe it also has something to do with the MPAA directly funding his investigation and authoring the letters that Hood sent.

Either way, Google pointed out that the broad subpoena that Hood issued to Google clearly violated Section 230 of the CDA in looking to hold Google accountable for other's actions and speech. It pointed out other problems with the order as well -- and while Hood insisted that his subpoena was perfectly reasonable, it appears that a federal court isn't so sure. Today the court told Hood that he's granting a temporary injunction on the subpoena, noting that Google's argument is "stronger."

This certainly is nowhere close to over, but it does highlight that Hood's repeated arguments that he has every right to hold Google accountable for the fact that sometimes people use the search engine to find illegal stuff, isn't particularly convincing to at least one federal judge.

Permalink | Comments | Email This Story
]]>nice-try,-jimhttps://www.techdirt.com/comment_rss.php?sid=20150302/10410330186Fri, 27 Feb 2015 11:41:35 PSTGoogle Suddenly Realizes That Maybe It Doesn't Need To Ban Adult Content On BloggerMike Masnickhttps://www.techdirt.com/articles/20150227/06581030159/google-suddenly-realizes-that-maybe-it-doesnt-need-to-ban-adult-content-blogger.shtml
https://www.techdirt.com/articles/20150227/06581030159/google-suddenly-realizes-that-maybe-it-doesnt-need-to-ban-adult-content-blogger.shtmleffectively kick out all of the bloggers who use its blogger platform to post "adult" content -- either text or images. Google gave such bloggers just 30 days to find a new home before it would make all their blogs private. It insisted that, going forward, the content police at Google would determine what photographs were "artistic" and allowed, and which were "dirty" and not allowed. As we noted, this move seemed particularly tone deaf and problematic, and could lead to other problems for Google. And a lot of other people agreed.

This week, we announced a change to Blogger’s porn policy. We’ve had a ton of feedback, in particular about the introduction of a retroactive change (some people have had accounts for 10+ years), but also about the negative impact on individuals who post sexually explicit content to express their identities. So rather than implement this change, we’ve decided to step up enforcement around our existing policy prohibiting commercial porn.

Blog owners should continue to mark any blogs containing sexually explicit content as “adult” so that they can be placed behind an “adult content” warning page.

Bloggers whose content is consistent with this and other policies do not need to make any changes to their blogs.

Thank you for your continued feedback.

So, kudos to Google for at least hearing the feedback and rolling back the change -- though it's still unfortunate that it even had to come to that in the first place. It seems likely that many of those bloggers may go looking for alternate hosting anyway.

Google's distribution of jihadi videos on Google’s monopoly video search platform certainly looks like material support of terrorists which is itself a violation of the federal law Google claims to hold so dear. (See 18 U.S. Code §2339A and §2339B aka the U.S. Patriot Act.)

Of course, there are all sorts of problems with the Patriot Act, including its definitions of "material support of terrorism," but to stretch the law to argue that providing an open platform and simply not removing videos fast enough (the videos in question all got removed pretty rapidly anyway, but not fast enough for Castle) is somehow "material support for terrorism" is flat out crazy. It stems from the same sort of confused logic that Castle has used in the past, arguing that Google and others must magically "just know" what is infringing and what is not -- suggesting a true lack of understanding about the scale of offerings like YouTube and the resources needed to sort through all the content.

We were inclined to simply dismiss Castle's nuttiness to the category of "WTF" where it belongs... until at a conference earlier this week, a DOJ official, John Carlin, who holds the role of assistant attorney general for national security, appeared to suggest that anyone helping ISIS's social media campaign could be guilty of "material support" for terrorism:

John Carlin, the assistant attorney general for national security, told a cybersecurity conference in Washington on Monday that officials could try to blunt ISIS’s violent PR operation by essentially trying propagandists as terrorists. He suggested the Justice Department could bring prosecutions under the law against providing material support to a terrorist organization. His remarks were believed to be the first time a U.S. official has ever said that people who assist ISIS with online media could face criminal prosecution.

Carlin was asked at the conference whether he would “consider criminal charges” against people who are “proliferating ISIS social media.”

His answer: “Yes. You need to look at the particular facts and evidence.” But Carlin noted that the United States could use the material support law to prosecute “technical expertise” to a designated terrorist organization. And spreading the word for ISIS online could count as such expertise.

Carlin seems more focused on someone tweeting a link to ISIS propaganda or something along those lines, which would raise significant First Amendment issues, but his comment about "technical expertise" could certainly be turned around and put upon YouTube, Twitter, Facebook and other providers of social media tools. That would create a huge mess, and open a Pandora's box that would undermine one of the key premises of the internet that has made it so successful.

Is the DOJ really looking to undermine the entire internet, just because some terrorists have figured out that it's a good way to get out their message?

Meanwhile, if you want to see just how far this sort of ridiculous thinking takes you -- at the same time that people like Castle and Carlin are arguing about how YouTube may be supplying material support for terrorists, YouTube was deleting videos that were being used to document ISIS war crimes. YouTube has been rushing around trying to take down all kinds of ISIS and other terrorist content for a while now -- ever since then Senator Joe Lieberman demanded that YouTube block terrorist videos. And, the end result is that important channels that catalog and archive evidence and documentation of war crimes are being taken down. And, this is not the first time this sort of thing has happened.

When you start accusing these platforms of having some sort of liability (potentially criminal liability in the form of "materially supporting terrorists" for merely providing an open platform that anyone can use, you are more or less guaranteeing that important content, such as that which documents war crimes and atrocities gets banned as well. Is that really what Castle and Carlin are looking to do?

Permalink | Comments | Email This Story
]]>depends on your point of view apparentlyhttps://www.techdirt.com/comment_rss.php?sid=20150224/12545730130Tue, 24 Feb 2015 15:43:08 PSTSanctioned Revenge Porner Craig Brittain Says That Google Is Nothing But Copyright InfringementMike Masnickhttps://www.techdirt.com/articles/20150224/11424730127/sanctioned-revenge-porner-craig-brittain-says-that-google-is-nothing-copyright-infringement.shtml
https://www.techdirt.com/articles/20150224/11424730127/sanctioned-revenge-porner-craig-brittain-says-that-google-is-nothing-copyright-infringement.shtmlPustule Nickelback McHitler III), is now trying to get Google to disappear most articles about his FTC settlement. As we noted, in making sure that the public is well aware of what kind of person Brittain is, the FTC wrote up not one, not two, but three separate notices about Brittain's actions (revenge porn and then setting up a fake lawyer you could pay to "take down" the images you never wanted on his site in the first place).

Back in 2012 Brittain tried to abuse the DMCA to take down earlier criticism (from Popehat). He apparently didn't learn his lesson when that failed, which explains his recent attempt to do the same -- including arguing that the FTC's own writeups about its settlement with Brittain were infringing.

Over on Twitter, Adam Steinbaugh, one of the people who Brittain sought to censor with the DMCA, told Brittain that he could just send a DMCA notice straight to Steinbaugh or his host, rather than going after Google, leading to a fascinating and totally clueless discussion about how Brittain is really doing this because he thinks it's unfair that Google gets to build a search index, which he considers infringing. Uh huh, Craig, sure thing.

If you can't see those images, Brittain says that he's "not interested" in everyone who wrote about his settlement using "his" "material," (still not clearly identified, by the way), but rather "Google's use of the material." Then he notes: "Google is piggybacking of of content creators, which really means that by default they should be paying for it."

Even ignoring the sheer... wrongness... of this "legal analysis," it's doubly hilarious in that it comes from a guy whose entire claim to "fame" is posting photos of people that are submitted to his website, for which he does not pay anyone for those works -- and, rather, tried to get people to pay him to take them down. Irony is a word that apparently Brittain is not acquainted with.

Oh, and I'm especially curious as to how Brittain believes that Google indexing and linking to the FTC's website is infringing and should be paid for, given that, as a work of the federal government, the FTC's statements on Craig Brittain are in the public domain.

At that point, I pointed out that he appeared to be ignoring multiple court rulings that have made it clear that Google's indexing is clearly fair use, at which point it became clear that Brittain had no idea that this issue has been well litigated in the past, and he's just wrong. First he insists that the courts were "acting improperly" and then asks if any of us "jokers" have written about this Perfect 10 v. Google case that apparently was a totally brand new concept to Brittain:

Perfect 10 certainly has quite a reputation for legal buffoonery when it comes to copyright law. Is Craig Brittain getting ready to take things a step further?

Permalink | Comments | Email This Story
]]>good-luck-with-that-theory,-craiggershttps://www.techdirt.com/comment_rss.php?sid=20150224/11424730127Tue, 24 Feb 2015 10:38:00 PSTGoogle Gets Prude: Says No More Adult Content On BloggerMike Masnickhttps://www.techdirt.com/articles/20150224/07341330122/google-gets-prude-says-no-more-adult-content-blogger.shtml
https://www.techdirt.com/articles/20150224/07341330122/google-gets-prude-says-no-more-adult-content-blogger.shtmlit will no longer allow "adult" content on its Blogger platform, giving bloggers on the site just 30 days to find another home or have their content set to private. Here's the note that some bloggers received yesterday:

Frankly, this is ridiculous. Yes, Google is a private company and has the right to do whatever it wants, but this sort of prudish, paternalistic role in determining what content is appropriate and what content is "artistic" or "educational" is a path with a lot of landmines that will lead to stifled speech on a platform that used to be celebrated for enabling free speech around the globe. On top of that, you have people who have used the platform to post this kind of information and content for over a decade suddenly being evicted with 30 days notice. Yes, this is always a risk that you take when you rely on someone else's platform, but it's a really unfortunate move from a company that one would hope would know better than to take such a hamfisted position on what content it "allows."

Of course, as Violet Blue notes, this is only the latest in a long line of moves by Google to stifle, hide or block any content that is sexual in nature. Here's just a snippet of a much longer piece by Blue, detailing the timeline of recent decisions by Google, all of which push content the company deems inappropriate further and further away:

It was one thing when Google Plus rolled out in June 2011 with a strict anti-adult, no sexual content policy for its troubled attempt at a social network; many of us just didn't bother participating, knowing how the content-policy ax always falls (not on the side of artists, writers, activists, LGBT people, or cultural outsiders who speak up).

In February 2014 adult and erotic content was banned from Chromecast, followed by March 2014's ban and purge of adult and erotic apps from Google Play (Android's app and media hub).

April saw an ongoing series of Google Search algorithm updates that savaged existing adult website rankings, causing major disruptions in traffic and revenues for many websites.

So it's no surprise that many people believe that Google won't uphold its "freedom of expression" stance when it comes to organic adult search results.

I'm sure there are plenty of good business reasons why Google no longer wants to have this kind of content available on its site, but it's disappointing on multiple levels. It's not "censorship" in the classical sense, but it does seem like a really bad move by Google. It's a company that should know better, and often holds itself up as enabling more speech around the globe, and avoiding making any sort of "artistic" decisions on the worthiness of content. It is immensely troubling that this company now suddenly wants to determine which content it thinks is "appropriate" and which is not, not based on any legal requirements, but on a very subjective standard. Facebook did this sort of thing from early on in doing ridiculous things like banning "breastfeeding" images, and one would hope that Google would take a more reasonable stand. On top of that, giving people just 30 days to figure out where to go, when many have built up their blogs for over a decade just seems tremendously callous.

Google is a private company and can make its own choices, but this one seems like a particularly bad choice, which may have other consequences as well. For years, Google has pushed back on demands from copyright holders to magically monitor all its content, saying that it's just not possible. Yet, here it is now saying that it's willing to do exactly that, including making "artistic" judgments on the merits of whether adult content is purely prurient or done for a more artistic or educational reason. The company seems to be opening itself up to charges that if it can make such determinations for that type of content, it can also magically figure out what other content is "infringing" or not. This seems like a move that the company will regret.

Permalink | Comments | Email This Story
]]>paternalistic-nonsensehttps://www.techdirt.com/comment_rss.php?sid=20150224/07341330122Mon, 23 Feb 2015 03:52:00 PSTGoogle Blasts DOJ's Request For Expanded Search Powers; Calls Proposal A Threat To The Fourth AmendmentTim Cushinghttps://www.techdirt.com/articles/20150221/19524830103/google-blasts-dojs-request-expanded-search-powers-calls-proposal-threat-to-fourth-amendment.shtml
https://www.techdirt.com/articles/20150221/19524830103/google-blasts-dojs-request-expanded-search-powers-calls-proposal-threat-to-fourth-amendment.shtmlThe DOJ wants to amend Rule 41 (Search and Seizure) to grant its agencies unilateral powers to hack any computer in the world. This would expand its reach beyond the US, using warrants granted by magistrate judges to facilitate searches and seizures of remote data. This would obviously open up a whole diplomatic can of worms, what with the FBI hacking into computers whose locations it can't ascertain until after the fact.

Not that the DOJ is bothered by the implications of the amendment it's pushing. It argues that the law already has determined searches in known jurisdictions legal. What's left to be established is whether it's similarly legal to search computers whose true location is unknown, thanks to the use of proxies and VPNs. That operating extraterritorially might cause some diplomatic strain or possibly even be illegal in the country the search takes place doesn't seem to have crossed its mind. In its opinion, this is the natural progression of Rule 41, which must be updated to reflect the change in technology.

Although the proposed amendment disclaims association with any constitutional questions, it invariably expands the scope of law enforcement searches, weakens the Fourth Amendment's particularity and notice requirements, opens the door to potentially unreasonable searches and seizures, and expands the practice of covert entry warrants.

Google then suggests that if the DOJ wishes to keep stripping away these protections, it should have the decency to do it the way it's usually been done: through acts of Congress.

The substantive changes offered by the proposed amendment, if they are to occur, should be the work of congressional lawmaking. Such was the case with a slew of legislation providing law enforcement with the ability to use technological means to conduct invasive searches on targets, including the Foreign Intelligence Surveillance Act, which provides law enforcement with the ability to legally surveil and collect foreign intelligence information; Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which provides law enforcement with the ability to legally intercept wire, oral, and electronic communications; the Stored Communications Act, which provides law enforcement with the ability to legally access electronically stored communications; and the Pen Registers and Trap and Trace Act and USA PATRIOT Act, both of which provide law enforcement with the ability to legally intercept real-time telephony metadata. In passing this legislation, Congress was able to openly debate and weigh the various constitutional issues at play.

"I empathize that it is very hard to get a legislative change," Amie Stepanovich, senior policy counsel with Access, a digital-freedom group, told the judicial panel during a meeting called to review the proposal in November. "However, when you have us resorting to Congress to get increased privacy protections, we would also like to see the government turn to Congress to get increased surveillance authority."

Google also warns that the non-specific wording of the proposal lends itself to all sorts of shady tactics.

There are a myriad of serious concerns accompanying the government's use of NITs [Network Investigative Techniques]. These are outlined in detail in other comments submitted to the Committee and include, among other things, the creation of vulnerabilities in the target device thereby increasing the target's risk of exposure to compromise by other parties, actual damage to the target device, the creation of a market for zero-day exploits, and unintended targets' exposure to malware. Additionally, the remote facilities accessed by the government may in fact identify and disclose the 'hack' or take action to prevent it or retaliate against its use. These are serious concerns that are more appropriately considered and balanced by Congress than by the Committee.

Again, with the exception of the eventuality listed last, these are side effects the DOJ couldn't care less about. Collateral damage is almost always acceptable, and at this point -- considering what we've learned about the tactics deployed by the NSA and other intelligence agencies -- making things worse and less safe for the world's citizens is just another essential part of fighting Wars on Things.

The DOJ seems to view its proposal as a necessity in the race against technological advance, rather than a dangerous expansion of power that could result in some very negative repercussions. Unfortunately, the nation's prosecutors and magistrate judges seem to be very much aligned with the DOJ. Both refer to the Rule 41 change as "filling a significant gap" in existing law.

But it does far more than that. The DOJ argues it's just a needed tweak, but it gives its agencies unprecedented extraterritorial powers and encourages these investigators to view anonymous connections as inherently suspicious.

Permalink | Comments | Email This Story
]]>to-keep-up-with-the-bad-guys,-we're-just-going-to-need-the...-EVERYTHINGhttps://www.techdirt.com/comment_rss.php?sid=20150221/19524830103Fri, 20 Feb 2015 12:34:00 PSTNSA's Stealing Keys To Mobile Phone Encryption Shows Why Mandatory Backdoors To Encryption Is A Horrible IdeaMike Masnickhttps://www.techdirt.com/articles/20150220/07322530086/nsas-stealing-keys-to-mobile-phone-encryption-shows-why-mandatory-backdoors-to-encryption-is-horrible-idea.shtml
https://www.techdirt.com/articles/20150220/07322530086/nsas-stealing-keys-to-mobile-phone-encryption-shows-why-mandatory-backdoors-to-encryption-is-horrible-idea.shtmlencrypt data on iOS and Android devices by default, there's been a ridiculous amount of hand-wringing from the law enforcement community about requiring backdoors, golden keys and magic fairy dust that will allow law enforcement to decrypt the information on your phone... or children will die, even though they actually won't.

And, of course, yesterday, the Intercept had its big story about how the NSA (with an assist from GCHQ) hacked its way to get access to the encryption keys used on SIM cards on basically all the mobile phones out there, giving those intelligence agencies easy (warrant-free!) access to conversations that most people thought had at least some encryption. These two stories may not seem to be directly connected (we're talking about different kinds of encryption for different things), but in writing about the SIM card story, Julian Sanchez at Cato makes a really good point about why the Gemalto hack underscores why backdoors are a horrendously bad idea: they create a central point of attack to undermine all the security that people rely on.

Finally, this is one more demonstration that proposals to require telecommunications providers and device manufacturers to build law enforcement backdoors in their products are a terrible, terrible idea. As security experts have rightly insisted all along, requiring companies to keep a repository of keys to unlock those backdoors makes the key repository itself a prime target for the most sophisticated attackers—like NSA and GCHQ. It would be both arrogant and foolhardy in the extreme to suppose that only “good” attackers will be successful in these efforts.

It would be nice to see that the revelation of the NSA undermining one use of encryption led people to realize the stupidity of undermining other forms of encryption, but somehow, it seems likely that our law enforcement community won't quite comprehend that message.

Permalink | Comments | Email This Story
]]>let's end this nowhttps://www.techdirt.com/comment_rss.php?sid=20150220/07322530086Thu, 19 Feb 2015 06:01:18 PSTFrench Minister Thinks Netflix Needs To Pay ISPs A 'Bandwidth Tax' To 'Level The Playing Field'Karl Bodehttps://www.techdirt.com/blog/netneutrality/articles/20150217/04531430050/french-minister-thinks-netflix-needs-to-pay-isps-bandwidth-tax-to-level-playing-field.shtml
https://www.techdirt.com/blog/netneutrality/articles/20150217/04531430050/french-minister-thinks-netflix-needs-to-pay-isps-bandwidth-tax-to-level-playing-field.shtmldebate began in earnest back in 2005 when then AT&T CEO Ed Whitacre declared that Google should pay an extra, arbitrary toll simply for using the AT&T network. By Whitacre's government-pampered, duopolist logic, any content company that so much as touches an ISP's network should pay a levy to offset infrastructure costs -- well -- just because. Soon, a seemingly endless array of hired telco flacks started telling anybody who'd listen that content companies were getting a "free ride" and really needed to start paying their "fair share."

As we've repeatedly explained (perhaps unnecessarily if you have anything resembling critical thinking skills), this reasoning is incoherent and stupid, since customers and content companies alike already pay plenty for bandwidth and infrastructure. Still, somehow Whitacre's absurd attempt to try and offload network operation costs to others went viral globally, and we've repeatedly seen overseas telcos trying to argue the same point ever since. Of course, whereas Google used to be the global telco whipping boy, we're increasingly seeing Netflix playing that role given its more vocal support of net neutrality.

It's the painfully dumb idea that just won't die. French Minister of Culture and Communication Fleur Pellerin has spent the last few years with an incumbent telco bug in her ear, demanding that she force Google, Netflix and other content companies to pay some kind of a "bandwidth tax." As we've seen here in the States, Google appeared willing to (at least temporarily) go mute on net neutrality, and as Glyn has noted previously, Google France appeared willing to trample neutrality principles, allowing some degree of ISP double dipping to protect mobile handset market share.

Apparently feeling encouraged, Pellerin has ramped up her efforts for this new content company tax in order to "level the playing field" for French TV and filmmakers (read: incumbent French phone company Orange):

"France's culture minister is as keen as ever to tax tech behemoths to "level the playing field" for French TV and filmmakers. According to news reports, Fleur Pellerin plans to introduce a new tax on "the use of bandwidth", although exactly how this will be calculated is not clear...In January, the minister said she wanted a "level playing field "for French broadcasters alongside the likes of Netflix. The news was welcomed by some ISPs who want to offer so-called specialised services – basically incorporating lots more speed and bandwidth."

As a general rule of thumb, I've found that almost anytime somebody claims to be interested in "leveling the playing field," they're usually busy trying to do the exact opposite. There's still no details on precisely how Pellerin's plan would work, but it's likely going to run face-first into the EU's looming net neutrality rules, which, if they're worth anything, will at the very least ban these kinds of ridiculous "troll tolls." Here in the States, most phone companies have been forced to shift their attention from ham-fisted troll tolls to more subtle, clever ways of abusing market power, whether that's interconnection, usage caps or zero rated apps.

Still, Ed Whitacre's viral meme that phone companies have the inherent, god-given right to double or triple dip is the gift that just keeps on giving.

Permalink | Comments | Email This Story
]]>ain't-gonna-ride-our-pipes-for-freehttps://www.techdirt.com/comment_rss.php?sid=20150217/04531430050Tue, 17 Feb 2015 10:04:39 PSTAT&T Says It Will Match Google Fiber's Speed & Pricing, But Only If You Allow AT&T To Spy On YouKarl Bodehttps://www.techdirt.com/blog/netneutrality/articles/20150216/10040130026/att-is-charging-gigapower-broadband-customers-30-premium-if-they-want-to-opt-out-snoopvertising.shtml
https://www.techdirt.com/blog/netneutrality/articles/20150216/10040130026/att-is-charging-gigapower-broadband-customers-30-premium-if-they-want-to-opt-out-snoopvertising.shtmlGoogle has nothing to do with it. On the surface, it looks like AT&T is taking on Google blow for blow, and that this is a wonderful example of how competition works. And while that's true up to a point, as we've discussed previously, AT&T's offering is highly theatrical in nature. AT&T's actually been slashing its fixed-line CAPEX each quarter, but is offering 1 Gbps speeds to a few, scattered high-end developments where fiber is already in the ground.

But in the locations AT&T is deploying 1 Gbps services, it's actually engaged in something that -- in typical AT&T fashion -- sets an even worse precedent. On the heels of scattered Gigapower deployments in Austin, AT&T this week announced it's also offering symmetrical 1 Gbps speeds in portions of Kansas City. After the press release gets done insisting that AT&T "moved quickly to bring more competition to the Kansas City area" with a 1 Gbps offering for $70 a month, quadruple asterisked fine print explains that to actually get this $70 price point, you have to agree to opt-in to AT&T's "Gigapower Internet Preferences" program:

"U-verse High Speed Internet 1Gbps: Internet speeds up to 1Gbps for $70 per month****, includes waiver of equipment, installation and activation fees, and a three year price guarantee...**** U-verse with AT&T GigaPower Premier offer is available with agreement from customer to participate in AT&T Internet Preferences. AT&T may use Web browsing information, like the search terms entered and the Web pages visited, to provide customers with relevant offers and ads tailored to their interests."

Assuming the company's Kansas City pricing mirrors its Austin pricing, if you choose to opt-out of this particular brand of snoopvertising, you'll need to pay $100 a month. That's right: even when faced with real price competition, AT&T can't help but be AT&T -- and try to charge users a $30 premium just to opt-out of a behavioral ad program. AT&T's Internet Preferences FAQ can't be bothered to detail the technology used, though it's most likely deep packet inspection (you know, the kind of technology small companies like NebuAD and Phorm were absolutely destroyed for using).

AT&T's pretty clearly not very familiar with how this whole price competition thing works, and needless to say, most sensible Kansas City and Austin users will be taking their broadband business to Google if they want to avoid AT&T being AT&T. Not that we'll get to see this on AT&T earnings numbers; since the entire project is a bit of a show pony to begin with, the company doesn't disclose how many Gigapower customers it serves. AT&T just wants you to believe it's on the cutting edge -- even if that cutting edge predominantly involves make believe -- and forcing consumers to pay a premium for privacy.